At Katherine L. Maloney & Associates, we believe informed clients make the best decisions about their estate plans. That's why we want to break down complex terms and clarify confusing principles so that you make the right choices for your estate, too. Contact our office either online or at 815-577-9763 for a Free Consultation to get specific legal advice for your estate plan. In the meantime, here are responses to some of the most frequently asked questions we get when new clients come to our office in Plainfield.
What exactly is estate planning, and why should I consider it now?
Estate planning is far more than just creating a will. It's a comprehensive approach to managing and protecting your assets during your lifetime and ensuring their proper distribution after your death. Estate planning also encompasses making crucial healthcare decisions and establishing contingency plans for potential incapacity. While many people believe estate planning is only for the elderly or wealthy, it's crucial for anyone who wants to protect their loved ones and assets. Having a proper estate plan in place can save your family significant time, money, and emotional stress during difficult times. It also gives you control over important decisions about your healthcare, finances, and legacy.
What documents should my estate plan include?
A comprehensive estate plan should include several key documents:
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Revocable Living Trust
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Last Will and Testament
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Power of Attorney for Healthcare
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Power of Attorney for Property
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Living Will
How does probate work in Illinois, and what should I know about it?
Probate is the court-supervised process of administering a deceased person's estate. In Illinois, this process typically takes 6-12 months but can extend longer for complex estates. The process begins with filing the will and appointing an executor. The executor then inventories assets, pays debts and taxes, and distributes remaining assets to beneficiaries. Probate can be expensive and time-consuming, with costs including court fees, attorney fees, executor fees, and other administrative expenses. While smaller estates may qualify for simplified probate procedures, many people choose to implement probate-avoidance strategies through their estate planning.
What happens if I pass away without creating a will in Illinois?
When you die without a will in Illinois, known legally as dying "intestate," the state's intestacy laws determine how your assets will be distributed. This can lead to unintended and potentially unwanted outcomes. The Illinois intestacy statute follows a strict hierarchy: if you're married with children, your spouse and children split the estate, with your spouse receiving half and your children dividing the remaining half. If you have no children, your spouse receives the entire estate. Without a surviving spouse or children, your assets go to your parents and siblings, then to more distant relatives. This distribution may not align with your wishes and could lead to family conflicts or financial hardships for your loved ones.
Do I need a lawyer to write my will?
While you do not need a lawyer to write a Will, doing it yourself is a considerable risk. A Last Will and Testament that was not written by an attorney or that was created using an online form are more likely to be challenged or be deemed invalid for failure to comply with the legal requirements.
What are the requirements for a valid will in Illinois?
For a will to be valid in Illinois, you must be at least 18 years old and of sound mind. The will must be in writing, signed by you, and witnessed by two credible witnesses who must also sign the document.
How often should I review my estate plan?
Regular review of your estate plan is essential. Major life events such as marriage, divorce, births, deaths, significant asset changes, or moving to a different state should trigger a review. Even without major changes, review your plan every 3-5 years to ensure it remains current with law changes and your wishes.
How can I minimize family conflicts over my estate?
Clear communication and careful planning are key to preventing family disputes. Consider:
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Explaining your decisions to family members during your lifetime
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Including a no-contest clause in your will
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Choosing an impartial executor if family tensions exist
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Being specific about the distribution of personal items
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Using a trust to implement more complex distribution plans
Can you write a will if you have Alzheimer's or dementia?
People need to have testamentary capacity to make a valid will. This often requires an understanding of the property being devised in the will. People with Alzheimer's or dementia may not have testamentary capacity. The best way to make sure they have a Will in place is to hire an attorney to help.
What happens to my mortgage and other debts after I die?
Your estate is generally responsible for paying your debts after death. Proper planning can ensure your beneficiaries aren't burdened with these obligations.
Do I need a Will if I have no children?
If you die without a Will, your estate will pass to others through your state's intestacy laws. If you have no children, then property will be disbursed to family members. If there are no heirs according to your state's intestacy laws, then the state may acquire the property.
Keep in mind you do not have to create a Will to benefit only your family. A Will allows you to pass your estate in a way that will serve what matters most to you: this could be preserving the financial well-being of your partner, parents, or siblings, but also setting money aside for the care of a pet, or assisting a charitable organization aligned with your values.
How do I protect my children through estate planning?
Protecting minor children requires careful consideration of both guardianship and financial management. Your will should name both a guardian who will raise your children and a trustee who will manage their inheritance until they reach an appropriate age. Consider establishing a trust that can provide for their education, healthcare, and maintenance while protecting the assets from mismanagement. You can also include specific instructions about your children's upbringing, values you want to instill, and how you want funds to be used for their benefit.
What is the difference between a Will and a Living Will?
A Will – also called a Last Will and Testament – comes into effect when the testator dies and directs the executor on how to transfer the property in the estate. On the other hand, a Living Will comes into effect when its creator is alive but incapacitated – it tells others what the creator's preferences and medical decisions are regarding their healthcare.
What's the difference between a Will and a Trust in Illinois?
A will is a legal document that takes effect only after death and must go through probate court. It names beneficiaries for your assets, designates guardians for minor children, and appoints an executor to manage your estate. A trust, particularly a revocable living trust, takes effect immediately upon creation and can help avoid probate. The trust owns your assets while you maintain control as trustee during your lifetime. Trusts offer greater privacy since, unlike wills, they don't become public record.
What is the purpose of a Trust?
A trust sets aside some assets for a trustee to manage for the sake of a beneficiary. The assets set aside in the trust do not go through probate, simplifying and expediting their transfer out of the estate. The trustee must follow the instructions set out by the trustor.
Can I have both a Will and a Trust?
Yes.
Are trusts only for rich people in Illinois with lots of assets?
No, trusts can be created by anyone.
What should I consider regarding my spouse's rights?
Illinois law provides significant protection for surviving spouses through the "right of renunciation," allowing them to claim a statutory share of your estate regardless of what your will states. Understanding these rights is crucial when planning, especially in second marriages or when you wish to leave assets to children from a previous marriage.
What happens to jointly owned property when one spouse dies?
When spouses jointly own property and one spouse passes away, the property is automatically passed to the surviving spouse. An example would be the marital home owned by both spouses as joint tenants.
What is a guardian?
A guardian is a court-appointed individual who is responsible for someone else's personal and financial well-being. People often nominate a guardian for their underage children in their Will. These legal guardians can make legal decisions on behalf of their wards, much like a parent.
How can I designate a guardian for my children?
Naming a legal guardian for your underage children is a common provision in a will. You also have the ability to appoint a conservator for adult children who may be unable to make certain decisions.
If you do not appoint a legal guardian via a will, the court will appoint one upon your death. For this reason, it is important even if it seems like commonsense to make sure you designate a guardian in your will.
How do I ensure my wishes regarding end-of-life care are followed?
A living will allows you to specify your preferences regarding end-of-life medical care. This document works in conjunction with your power of attorney for healthcare to ensure your wishes are followed if you become terminally ill. It can address issues such as life support, pain management, and organ donation.
How can we make sure our special needs child is cared for after we die?
A common way to ensure a special needs child continues to receive the care they need is to appoint a guardian for them and to create a trust fund in their name. Special needs child trusts are specific for this purpose.
How can I make sure my pet is cared for after I die?
A common way to care for pets after their owner passes away is to state in the Will who is to care for the animal and then create a testamentary trust for the benefit of the pet.
How much will an Estate Planning attorney cost?
The costs for an estate planning attorney depends on multiple factors. First, what all do you want in your estate plan? How much in the way of assets Do you have? The more complicated your estate plan, the more costs you will expend. Second, how does the attorney charge? Is it by flat fee, which is most common among estate planning attorneys, or by hourly rate? In the former, less services may be included in the fixed rate, but in the latter, hours can add up quickly. You want to be sure exactly what you are getting (and not) for the price you are paying. You may pay a couple hundred dollars, or you could pay a couple thousand dollars.
What role do beneficiary designations play in estate planning?
Beneficiary designations on life insurance policies, retirement accounts, and other financial accounts override your will and trust. These assets pass directly to named beneficiaries, avoiding probate. Regular review and updating of beneficiary designations is crucial to ensure they align with your overall estate plan and current wishes.
What are Powers of Attorney, and why do I need them?
Powers of Attorney are crucial documents that allow you to designate someone to make decisions on your behalf if you become incapacitated. A Power of Attorney for Healthcare appoints someone to make medical decisions for you, while a Power of Attorney for Property designates someone to handle financial matters. These documents help avoid the need for costly guardianship proceedings and ensure your affairs are managed according to your wishes by someone you trust.
Contact an Estate Planning Lawyer in Illinois Today
At Katherine L. Maloney & Associates, we know you have a lot of questions about estate planning. Our estate planning attorney is here to answer your specific questions. Contact us either by using our online form or by calling us directly at 815-577-9763 to schedule a Free Consultation.
